A culture war the Founding Fathers couldn’t foresee

The Constitution was drawn up to minimise dangerous, divisive conflict

Brett Kavanaugh’s Supreme Court nomination hearings were an embarrassing and degrading spectacle for America. They were ugly, they were painful and they were shameful. They weren’t simply the result of the year-old #MeToo movement, nor just another symptom of the decline in political norms in the wake of President Trump’s victory. These heated and intense hearings were the reflection of the ongoing war over America’s soul.

This war truly divides American politics today: the struggle is between those who revere America’s past and those who question or disdain it. It is a war that, like binary conflicts of the past, promises to get much worse before resolution can be found.

America’s Founding Fathers recognised how dangerous such divisive binary wars over values could be to the political order. In the Federalist Papers, Alexander Hamilton and James Madison explained how the new Constitution was intended to minimise the dangers. Their arguments remain important today, both in understanding why America has so rarely become engulfed in these types of conflicts, and why it is now teetering on the brink of one.

They identified two types of conflicts that could destroy a state. The first flowed from the economic demands democracy would create. Looking to the ancient Greek and Roman republics, they sought to remove the possibility that a popular majority would try to take the wealth of a rich minority. To this end, the Constitution’s primary author, Madison, insisted on three innovations that remain mainstays of America’s governing structure: representation, bicameralism, and the separation of powers.

The existence of the three reduces the possibility that one single group – what Madison called a faction – could seize control of all the levers of government at once. Representation ensured that a mob could not be whipped into a frenzy to violent action: their will could be exercised only indirectly. Bicameralism meant that a faction had to obtain control of two different electoral bodies, each with its own mode of election, and elected according to different schedules, to obtain legislative power. The separation of powers added a third hurdle: that such a faction would need to win control of an independently elected executive to wield the full power of government. Madison thought that these measures would break the zeal and intensity of a single faction’s desire to dominate, and as such preserve civic peace.

The second type of binary conflict stems from debates over ways of life. If one faction believed that their way was the right way, it could use control of the government to force its views on dissenters. This is what happened in Europe during the religious wars of the 16thand 17th Centuries, when Protestants and Catholics warred incessantly over whose was the one true religion.

Madison and the Founders sought to prevent such a destructive conflict from ever coming to America by removing religion from national politics altogether. The Constitution contains a clause that forbids the institution of a religious test for holding public office; in the United States, simply being a Catholic or a Jew would not bar one from public life.

The Constitution’s First Amendment also prevents Congress from “making any law respecting the establishment of a religion, or the free exercise thereof”, further removing religious disputes from national public life. Nothing in the original Constitution prevented states from establishing a religion; indeed, Massachusetts would not disestablish its state church until 1833, and New Hampshire did not remove its own religious test for office until 1876. The Constitutional impediments, however, did prevent religious quarrels from becoming national political questions.

Today’s conflict is neither religious nor economic. In this respect, the Founders’ protections have held. But the growth in national judicial power has made Madison’s original barriers to faction much less salient. And today, binary conflicts over values need not necessarily concern religious doctrines.

Americans today are, instead, deeply divided over culture; they are at odds over which is the best way of life to lead. On the one side are people who find America’s traditional, European, and Christian culture defective; on the other, there are those who believe that heritage to be valuable and essential. The first group finds its political expression in support for same-sex marriage, feminism, and measures empowering immigrants and non-whites. The second is the realm of the evangelical Christian and its allies in other orthodox and traditional faiths – as well as those worried about the declining importance of Americans of European heritage.

A poll from late 2017 shows how neatly these views separate into the two political camps. Conducted by YouGov on behalf of the cross-partisan Voter Study Group, it asked whether respondents thought America “has one primary culture with traditions and values that most everyone believes in”, or “has many different cultures with different traditions and values that people believe in”. Seventy-seven percent of Clinton voters said America has many different cultures, while 54% of Trump voters said it had one primary culture. The share of respondents who thought America has one primary culture increased with self-described conservatism, and among groups most favourable to Trump or the religious Right.

These differences have spawned dramatic increases in partisan hatred. A new book, Prius or Pickup, citing survey data, shows that nearly half of Republicans and Democrats hate the other party, more than twice the level of hatred just two decades ago. Another survey taken in 2016 found that between 41 and 45 % of partisans thought the other party’s policies were a threat to the nation. By mid-2017 more than half of Democrats and Republicans thought the other party represented a national threat. In light of these data, perhaps recent editorials by liberal columnists saying the Kavanaugh confirmation was “illegitimate” or represented “war” should be taken as serious beliefs rather than hyperbole.

These cultural divides are politically crucial nowadays because America’s Constitution has, through decades of Supreme Court rulings, made them the subject of national political debate. The traditional understanding that the federal Constitution, and especially the First Amendment, did not apply to the states was overruled in a series of cases between 1925 and 1947. Since then, virtually every major issue concerning traditional Christian views of morality has been decided via a Supreme Court decision, not by legislation. As a result, cultural questions have been nationalised in a way the Founders sought to prevent, and control of the Court is thus vital to each side’s interests.

This is why Kavanaugh’s nomination has stirred such passions. His confirmation meant that his would be the fifth and deciding vote that could overrule a host of Court precedents supported by Democrats and Clinton voters. For them, therefore, stopping him was a must, something that could not be compromised. The survival of their way of life depended on their winning this battle.

Similarly, traditionalists saw his vote as a bulwark against further potential Court rulings that might be adverse to their interests, as well as a potential vote to overturn such rulings as Roe v Wade (which established a constitutional right for a woman to have an abortion) or Obergefell v Hodges (which established same-sex marriage as a constitutional right across the United States). Losing for them was not an option.

The religious wars were similarly fought over the right way to live, each side deeming its own interpretation of Christianity as the one true one. Only the stalemate produced by over a century of warfare, culminating in the Treaty of Westphalia, ended the bloodshed.

The Westphalian solution could be an answer to America’s woes, but adopting it would require turning back American jurisprudence to its earlier conceptions. The Treaty famously established the idea of religious federalism – as contained in the doctrine cuius regio, eius religio (the ruler of a realm determines its religion) – as the solution to the wars. This is identical in nature to the original American formulation that matters of culture should be for the individual states, and not the national government, to decide.

If applied today, it would mean that Baptist Alabama could have one set of laws concerning abortion and homosexuality, while progressive California could have another. Each side could believe zealously in its own views but, by removing the conflict from the national sphere, the nation itself could be preserved.

There would be difficulties, as the experience of post-Westphalian Europe demonstrates. Religious minorities within states were still subject to persecution. Louis XIV’s revocation of the Edict of Nantes in 1685 ended the freedom of Protestants to worship, leading to mass emigration. Even Great Britain suppressed the rights of religious dissidents until a series of acts of “emancipation” restored full civil rights to Catholics (1829) and Jews (1858).

In contemporary United States, however, many Americans would be concerned about what would happen in traditionalist states to non-whites, gays and lesbians, and women who sought abortions in other states. The federalist solution sits very uneasily with the ideal of universal human rights.

America did try this approach before, and it ended in our Civil War. And the division was over human slavery. The Founders had deferred the conflict when they drafted the Constitution by adopting a Westphalian model and leaving slavery to the states to determine. But by the mid-19thCentury that solution no longer satisfied either side.

Those who opposed slavery in the free states of the North sought to either abolish it or curtail its spread by barring slaves from federal territories. Those who supported slavery in the slave-holding South sought to defend it as a positive good and insisted on the right to settle federal territories with slaves in tow. No attempt to mediate this dispute, although many were attempted, could satisfy both sides. And so, as President Abraham Lincoln said in his Second Inaugural Address, “the war came”.

No one expects this conflict to end in war, but that is because the ability of one section of the country to resist another is no longer militarily possible. The potential for physical conflict cannot be ignored, however, as Left-wing activists follow conservative legislators to dinner to harass them, and Right-wing activists regularly denounce their foes as mendacious and deceitful.

Hundreds of protestors have been arrested already within Senate office buildings as anti-Kavanaugh forces swarm offices of the last undecided members. In a country with nearly 400 million firearms in private hands, it would be easy to imagine random acts of violence breaking out anywhere in the country no matter what the Kavanaugh result had been. What happens now only God knows.

The third author of the Federalist Papers, John Jay, noted that “Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs”. That original unity no longer pertains, and that is the root the cause of the conflict.

It is difficult now to see how it ends. Similar conflicts in history have been defused through partition (India and Pakistan, for example), a grant of special rights to the minority, as in the Edict of Nantes or the Good Friday Agreement, or through the replacement of one set of primary values (Christianity) with another (liberalism). Each of these examples, though, contain the potential seeds of its own failure.

America faced questions like these during the period of our massive immigration, which was diluting the political power of our original British, Protestant settlers with millions of Catholics and Jews from Ireland and Southern and Eastern Europe. After much trial and error, forged in part through the common experiences of the Great Depression and the Second World War, American identity morphed from that of a British-descended, Protestant country to one of the ‘melting pot’ where people from any background could come, so long as they adopted American values of decency, hard work, and devotion to political liberty.

It is possible that this identity can be updated to both include the new, secular or non-Christian American while maintaining the liberties and values of the older stock. But given the depth of the division and ferocity of the passions on display, it’s hard to see any sort of resolution coming soon.